Opinion
4 Div. 351.
October 11, 1945.
Appeal from Circuit Court, Henry County; D.C. Halstead, Judge.
Bill in equity to establish a disputed boundary line by J. C. Scott against W. D. Lucas and others. From a decree for complainant, respondents appeal.
Affirmed.
Carl S. Farmer, of Abbeville, and Elizabeth Espy, W. L. Lee Alto V. Lee, III, and J. R. Ramsey, all of Dothan, for appellants.
Trial by jury of issues of fact as to equity matters are within the discretion of the trial court, when not a matter of right. The trial court abused discretion in not. granting appellants a trial by jury. Code 1940, Tit. 7, §§ 322, 326; Jester v. Jester, 225 Ala. 138, 142 So. 523. Actual possession of land for forty years under claim of ownership, without recognition of any claim, right or title of another, operates as an absolute repose under the doctrine of prescription. Vidmer v. Lloyd, 184 Ala. 153, 63 So. 943. To establish adverse possession, possession held under claim of right and an actual occupancy, clear, definite, positive, notorious, continued, adverse and exclusive, during the whole period described by the statute, and with intention to claim title to the land occupied, must be clearly proved. Barbaree v. Flowers, 239 Ala. 510, 196 So. 111. Where evidence shows an existing boundary line indicated by a dividing fence had been considered by respondents as embracing their property, and held by them under claim of ownership for more than ten years, openly, and with no indication that it originated in any mistake, and that the fence had been so established for more than twenty years, and that the property embraced within said fence had been adversely held by respondents for twenty years and more, said fence was the true boundary line dividing complainant's and respondents' property. Barbaree v. Flowers, supra. Occasional acts of entry on land and cutting timber are not sufficient adverse possession to divest title out of true owner. Bradley v. Hall, 239 Ala. 544, 195 So. 883; McDaniel v. Tennessee C., I. R. Co., 153 Ala. 493, 45 So. 159. Evidence as to ancient corners and surveys, and of long continued possession in conformity thereto, are of weight in courts when land lines are in controversy. Ford v. Bradford, 212 Ala. 515, 103 So. 549. The evidence having been taken before a special register, and not before the trial judge, no weight will be given the decision of the judge by the appellate court. Cavin v. Cavin, 237 Ala. 185, 185 So. 741.
G. D. Halstead, of Headland, and Theodore R. Ward, of Abbeville, for appellee.
Equity does not provide trial by jury in disputed boundary line cases. Yauger v. Taylor, 218 Ala. 235, 118 So. 271; Branyon v. Kirk, 238 Ala. 321, 191 So. 345. In all instances where there is no statute granting jury trial as matter of right, such a trial rests in the sound discretion of the trial judge, and verdict of jury is not binding upon court but is advisory merely. Hill v. Lindsey, 223 Ala. 550, 137 So. 395; Alabama, T. N. R. Co. v. Aliceville Lbr. Co., 199 Ala. 391, 74 So. 441. Possession may be shown by acts suitable to the character of the land. A fence or enclosure is not essential nor is cultivation of the land, selling of timber, cutting of poles, cultivation of part of land, claiming of a line tree and taking lightwood off land and leasing land for mining are admissible to show ownership and notoriety thereof. Normant v. Eureka Co., 98 Ala. 181, 12 So. 454, 39 Am.St.Rep. 45; Woods v. Montevallo C. T. Co., 84 Ala. 560, 3 So. 475, 5 Am.St.Rep. 393; Montgomery v. Spears, 218 Ala. 160, 117 So. 753; Stiff v. Cobb, 126 Ala. 381, 28 So. 402, 85 Am.St.Rep. 38; Bradley v. Hall, 239 Ala. 544, 195 So. 883; 2 C.J.S., Adverse Possession, § 19, p. 533; Kidd v. Brown, 200 Ala. 299, 76 So. 65. Actual possession for 40 years under claim of ownership, without recognition of any claim, right or title of another, operated as an absolute repose under doctrine of prescription. Vidmer v. Lloyd, 184 Ala. 153, 63 So. 943; Bradley v. Hall, supra; Barbaree v. Flowers, 239 Ala. 510, 196 So. 111. There is no color of title in appellants and their possession was merely transitory for purpose of doing the acts which are trespasses in absence of legal right. Such acts cannot defeat right of one in actual or constructive possession under claim of ownership. Bradley v. Hall, supra; Green v. Marlin, 219 Ala. 27, 121 So. 19. They have not shown true ownership subject to divestiture. Bradley v. Hall, supra.
This suit is in equity by appellee against appellants, under Code 1940, Title 47 § 2 et seq., to establish a disputed boundary line between coterminous lands.
The first assignment of error challenges the ruling of the chancellor in denying the defendants' (appellants') demand for a jury.
In equity, a party is not entitled, as of right, to a jury to decide the issues of fact unless it is so provided by statute or constitution. In the absence of such a provision the power and duty to determine finally all questions of fact and law devolve upon the court. Curb v. Grantham, 212 Ala. 395, 102 So. 619; 30 C.J.S., Equity, p. 892, § 495.
Under such a status the court may submit an issue of fact to the jury for decision, but the verdict is advisory merely and for the purpose of "enlightening the conscience of the chancellor," which he, in his discretion, may reject. Alabama, Tenn. Northern Ry. Co. v. Aliceville Lumber Co., et al., 199 Ala. 391, 403, 74 So. 441, 446; Hill v. Lindsey, 223 Ala. 550, 137 So. 395; Tuscaloosa v. Shamblin, 233 Ala. 6, 169 So. 234; Wilbourne v. Mann, 203 Ala. 26, 81 So. 816; 53 Am.Jur. 781, § 1124; 19 Am.Jur. 272, § 398, 277, § 404.
The statute under which these proceedings were transacted makes no provision for a jury trial and the court will therefore not be put in error for refusing the defendants' demand. Rice and Wilson v. Tobias, 83 Ala. 348, 350, 3 So. 670; Alabama T. N. R. Co. v. Aliceville Lumber Co., 199 Ala. 391, 403, 74 So. 441; Wilbourne v. Mann, supra.
The remaining assignments of error relate to the trial court's conclusions on matters of fact.
The evidence was taken before a special register and will be here reviewed without the aid of any presumption favoring the decision of the court on the issues thereby presented. Code 1940, Title 13, § 17.
The boundary line in dispute was between appellee's lands on the west and appellants' lands on the east. There were two surveys to establish the line, one for appellants and one for appellee, and divergent results were achieved. The record is voluminous with much evidence seeking to sustain the respective lines contended for by the parties. The trial court, upon consideration, adjudged the true division. line to be as defined by appellee's surveyor, Pickett, and decreed that the line be so established and marked as provided by the Code (Title 47, § 4).
We have given studious consideration to the entire record, in consultation, and have reached the conclusion that the decision of the trial court should be sustained.
Though there was evidence tending to verify the contention of the appellants as to the true line separating the two tracts of land, the evidence as a whole, in our view, preponderated rather convincingly that the Pickett survey was the true division line. The government filed notes and the boundary lines of other adjacent and contiguous properties more positively sustain this location, as do fence markings and a hedgerow testified to by numerous witnesses as having been established along this line and recognized as the dividing line of the properties for a long period of time.
The fact that the deed of appellee misdescribed the south forty acres of his land does not affect the result. This same misdescription had prevailed through successive conveyances for over forty years and the evidence tended to substantiate that the respective owners, including appellee who purchased in 1917, were put in possession of the identical property as bounded by the line established by Pickett, and had possessed it and claimed it as theirs during this period. The possessory acts which appellee from time to time exercised for a period of over twenty years, indicative of ownership and claim of title, and sufficient as against appellants' claim to repose title in him under the rule of prescription, were the cultivation of part of the land up to the line, the selling of timber on several occasions therefrom up to the line, the cutting of poles and lightwood from this now disputed area, defending a lawsuit involving the cutting of a tree on the line (which tree, incidentally, some of the appellants on that trial asserted was on or about the line), and the leasing of lands for the mining of bauxite — all said acts, except the recent bauxite operations, having been without hindrance or objection of appellants or anyone else. There was some testimony that some of the appellants had a pasture, for a time, in the southern part of the disputed area, but this impresses us as uncertain and unsatisfactory, as against the countervailing evidence of appellee. During the period of this ownership, appellee is shown to have exercised such positive acts of possession and dominion over the land up to said line as its character and worth justified and this actual dominion and use was of such notorious, exclusive and adverse nature as to ripen into title as against appellants' claim of title. Bradley v. Hall, 239 Ala. 544, 195 So. 883.
There was further evidence tending to show that whatever use appellants might have subjected the land to west of this line was by permission of appellee and in recognition of his claim of title, which if true, would also defeat any claim of title by adverse possession appellants might assert. Kidd v. Browne, 200 Ala. 299, 76 So. 65.
Appellants also argue that the possessory acts proven by appellee, if true, are insufficient in law to repose the title in him. It is, of course, recognized that occasional acts of entry on land and cutting timber are not sufficient adverse' possession to divest title out of the true owner. Green v. Marlin, 219 Ala. 27, 121 So. 19. But these appellants have not shown true ownership subject to divesture.
As pointed out, the record is rather convincing that the Pickett line is the true government line dividing the two tracts and, being so, appellants were without color of title beyond said boundary and whatever desultory acts of possession appellants might have exercised over a small part of the disputed area could not override the claim of appellee. In such circumstances the law regards appellants' possession as "merely transitory for the purpose of doing the acts which are trespasses in the absence of a legal right. Such acts cannot defeat the right of one in the actual or constructive possession under claim of ownership." Bradley et al. v. Hall, 239 Ala. 544, 546, 547, 195 So. 883, 885; Green v. Marlin, supra.
We are persuaded, from a painstaking scrutiny of the record, that the evidence fairly and substantially sustains the conclusions of the trial court on the issue in dispute, and the decree is here affirmed.
Affirmed.
GARDNER, C. J., and BROWN and LIVINGSTON, JJ., concur.